Best v. Strong
New York Supreme Court
This was an action of assumpsit, tried at the Columbia circuit in April, 1827, before the Hon. William A. Duer, one of the circuit judges.
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This was an action of assumpsit, tried at the Columbia circuit in April, 1827, before the Hon. William A. Duer, one of the circuit judges. The plaintiff, describing himself as “assignee of the estate and effects of Henry Plainer, an insolvent debtor, according to the force, form and effect of the several statutes concerning insolvent debtors,” declared in indebitatus assumpsit, that the defendant was indebted to Platner before he became insolvent, in the sum of $3000, for money had and received, &e. and being so indebted, &c. promised to pay &c. The defendant pleaded the general issue. The…
1Opinion of the Court
By the Court, Marcy, J.
The first question presented by this case is, whether the character in which the plaintiff sued as assignee of Plainer was admitted by the pleadings. It is contended by the plaintiff, that the defendant, by pleading in chief, has admitted upon the record his right to maintain the action as assignee ; and if this right was intended to be contested it should have been put in issue by a plea in abatement. The case of Schermerhorn v. Jenkins, (7 Johns. R. 373,) was adduced as an authority to support this position. It is a well settled principle,, of law, that the infancy of…
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